Category: Brexit

The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’ – politics, accountability and rhetoric

25th August 2021

There are various means by which those with political power can evade accountability for what they do and do not do.

(By ‘accountability’ I mean those with political power being obliged to give an account for what they have done and not done.)

One means is by minimising or removing any formal checks and balances within our constitutional arrangements – answering to parliament, the independence of our courts, the effectiveness of judicial review, an impartial civil service, public service broadcasting and so on.

A second means is to disregard informal and non-legal self-restraints within the constitution – to ignore the ‘good chaps’ theory of the constitution, where so much depends on the willing observance of unenforceable conventions and rules of procedure.

A third means is to ensure that any special method of accountability – such as a public inquiry – is as delayed or limited as possible, if it takes place at all – and if it does take place, the ‘lessons learned’ are for another generation of politicians.

And a fourth is by means of rhetoric.

In particular, the increasingly regular occurrence of ministers and political appointees invoking ‘hindsight’.

In the commons, the prime minister responds to explanations of how he could have dealt with foreseeable things in a timely manner – regarding Brexit and other things – with the jibe ‘Captain Hindsight’.

The politically appointed head of the national health service test and trace programme told a parliamentary committee, with a straight face:

‘With the benefit of hindsight the balance between the supply and the demand forecast wasn’t right. Clearly that is true.’

And, now with Afghanistan, we have the foreign secretary explaining why he carried on taking a holiday during the fall of Kabul:

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Brexit.

COVID-19.

Afghanistan.

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In most, if not all, of these situations the potential problems were bleedingly obvious in real-time, at the time.

What was required was not hindsight but foresight.

But we now have a group of politicians who have realised they can benefit from a special form of political herd immunity by deriding criticism as ‘hindsight’.

And this, in turn, provides them with a licence to not properly think things through at the time and to take decisions (or not take decisions) for reasons of perceived political expediency.

For they know, in the back of their minds, that when things go wrong all they have to say to critics:

‘…with the benefit of hindsight’.

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A healthy polity does not greatly depend on formal constitutional instruments – and legalistic words in a document can only make so much difference.

A healthy polity instead depends on issues that can be characterised as ‘cultural’ as well as constitutional – the general sense of what those with political power can get away with.

And, as the very stuff of a political culture is largely words, symbols and communication, when that culture is debased then it becomes significantly more difficult to hold ministers to account.

The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’.

If this trend continues, then our polity will be the worse for for it.

And this will not only be obvious with…

…well, hindsight.

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Brexit and the Multiverse of Madness – how the Remain and Leave political narratives keep diverging

24th August 2021

Once upon a time…

…there was a settled political narrative – a ‘sacred timeline’ – where the forces of Remain and Leave battled for the future of the United Kingdom in the wider world.

For a long period, the forces of Remain had the ascendancy, and those forces grew complacent.

Then suddenly, the forces Leave had the upper-hand and they took their rare opportunity.

And on 23 June 2016, there was ‘the Snap’ where about half the political universe (48.2% actually) were cast into the political void.

But unlike the Marvel adaptation of this political crisis, ‘the Snap’ has not been reversed, despite the spirited attempts of Remain campaigners to travel back in time and revoke various things.

Still the ‘sacred timeline’ has nonetheless shattered, and there are now various multiplying narratives about Brexit.

In a few of these narratives, Brexit is going well and the dire warnings of Remain were mere projected fears.

In other narratives, nothing much has changed and there is a wonder at what all the fuss was about.

Some even have managed to escape fully into the past, and they spend their lives in a make-believe world of the 1950s.

In Remain narratives, Brexit is a plain disaster and the destructive events unfold issue by issue.

But the one common feature of all these variant timelines – the ‘nexus’ belief – is that the narrative validates the views of each person.

And so we now have a shattered, fragmented polity where concurrently we have contrasting – even contradictory – political narratives.

Is this sustainable?

Well.

In the less fantastical world of superhero comics such a dislocation is eventually followed by a cross-over event where various divergent storylines are somehow synthesised back into a single continuity.

(And then after a while that continuity will disentangle again, and so on.)

In the world of Brexit, however, there is little sign of such a synthesis.

If anything, the Remain and the Leave narratives are diverging further and further.

Any real-world crisis – infinite or otherwise – may not be enough to shake the Leave narratives.

And any real-world success will not be enough to shake the Remain narratives.

At least the Marvel cinematic universe resolved their ‘snap’ story before commencing their ‘multiverse’ stories.

Post-Brexit United Kingdom, being yet more ambitious, is doing both at the same time.

Brace, brace, brace, brace & ∞∞∞∞∞

**

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Decaf Nation – a passing anecdote about Brexit

21st August 2021

Someone somewhere – I think P. D. James – says that no coffee tastes as good as it smells.

And given that most people drink coffee not for the taste but for the (perceived) caffeine kick, some people do not seem to see the point of decaffeinated coffee.

(Such people include me, for what it is worth.)

But some people do, and it appears that they will currently be disappointed if they go into a chain of well-known coffee shops.

For in those coffee shops there is no decaffeinated coffee.

I established this in two branches of the same well-known coffee shop near where I live – and not with loaded questions but with a general ‘how come’ when told they had none.

Both times the answer was: Brexit.

(The first mention was prompted by overhearing someone else being told there was no decaf, the second was prompted by me inquiring generally.)

The second person who told me this I did not know, but the first – the manager of the most local branch – is as undramatic and unpolitical person as you can imagine.

I had – and have – no idea if this is the true reason for the lack of stock.

Perhaps it is a coffee shop urban legend.

Perhaps it is the desperate excuse of a desperate area manager.

But it was the explicit, resigned reason given in two separate shops, independently of each other.

I mentioned the first incident on Twitter – and it seemed to affirm what others had experienced.

So: either there was a number of people lying, or there is a mass delusion, or a number of people are experiencing shortages and these shortages are being attributed to Brexit.

A quick infantile response to this is to say ‘so what’ and dismiss it as a ‘first-world problem’ (which may affect, of course, coffee growers not from the first-world.)

Perhaps it is: access to decaffeinated coffee may well be up there with guacamole and vegan bacon as the least of all our concerns.

But.

If this is true – and it certainly is the sincere belief of honest people – then it provides a micro-example of the inconveniences and misadventures that unsurprisingly will follow the United Kingdom ceasing to be part of the European Union single market.

There were always going to be some effects – and this could just be one.

And perhaps in the medium term, the supply lines will adjust, and decaffeinated coffee shall again be available in chain stores.

If so, then – other than passing complaints – Brexit will have taken effect without the huge backlash that many – especially Remainers – predicted.

On the other hand, if this inconvenience is added to others, and then to others, and they accumulate then – maybe – voters will see the point of the United Kingdom being part of the single market – and politicians could respond accordingly.

What will practically shift minds will be certain things being unavailable – even minor things – and people attributing the shortage to the explanation.

The taste of Brexit, like coffee, may not be as good as what some people expect it be.

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(And for what it is worth, I support the United Kingdom being part of the single market but no formally rejoining the European Union – which some of you will say is the political equivalent of liking decaffeinated coffee.)

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In the meantime…

…it looks as if we will now go further into Brexit with a caffeinated, heightened sense of nervous energy.

And what could go wrong with that?

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No, Brexit cannot be ‘annulled’ or ‘cancelled’

14th August 2021

There are a couple of tweets on Twitter that are being heavily retweeted and liked saying that because of some court case or another, Brexit can be ‘annulled’ or ‘cancelled’.

These tweets are false – and those earnestly retweeting and liking the tweets are being given false hope.

The tweets are by knaves – accounts that either do or should know better.

And those knaves are taking those opposed to Brexit for fools.

There is a fancy that it is only the likes of Boris Johnson and Dominic Cummings and Nigel Farage and other Brexiters lie about Brexit.

But lies – and liars – are on the Remain side too.

And one can hardly complain about ‘fake news’ and ‘post-truth’ when one is also happily promoting social media posts that say false things that you want to believe are true.

That is not the opposite of Trump-like politics – but its application.

Brexit is a historical and legal fact.

There is no mechanism by which any court anywhere could order Brexit to be undone.

There is no court order that can undo Brexit.

There is no court of competent jurisdiction that can undo Brexit.

The only way the United Kingdom can (re)join the European Union is by the process under Article 49 (the one that comes before Article 50).

And such an application, if it is ever made, will not be quick – not least that the European Union would want to see a settled political consensus in the United Kingdom in favour of (re)joining.

It will be a slow slog – and may not even be in the lifetime of many reading this post.

Fantasy, of course, is more appealing for a supporter of the United Kingdom than this dull, distant prospect.

But that is all that these knavish tweets and tweeters are offering: fantasy.

Not all lies are written on the side of a big red bus.

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The story of Jack and Harry – what the respective Grealish and Kane contract situations tell us about all legal agreements, including the Brexit deal

6th August 2021

On the face of it, this blogpost may be about football – but the point it is seeking to advance is about all legal agreements, including the Brexit deal.

So if you are not a football fan, bear with the context, for the post is really about a more important general principle.

By way of background, there have been two football transfer stories in England in the last week.

One is the completed record £100 million transfer of Jack Grealish from Aston Villa (the club I happen to support) to a Manchester club.

The other is the potential and, as yet, frustrated transfer of England captain Harry Kane from a London club to that same Manchester club.

(I hope the supporters of those other clubs do not mind my gentle teasing – Aston Villa fans have not had a great few years, and we have to take pleasures as we can.)

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The story of Jack

The reason why the transfer of Jack took place is that he (with his agent and his lawyers) negotiated a particular provision in his contract with Aston Villa.

This provision appears to have been a clause with the following form:

In the event that

(a) there is a transfer bid of £100 million is received from

(b) a club taking part in the European champions league and

(c) Aston Villa is not taking part in the European champions league,

then a release option can be triggered by the player.

This provision appears to have been inserted in the new contract that the player negotiated and signed with the club last year.

It seems that Aston Villa did not want to sell Jack at less than £100 million nor in circumstances that would adversely affect the club’s chances in the European champions league in the happy (and then unlikely) event the club qualified for the competition.

The £100 million amount selected was a record fee for a transfer between domestic clubs and would have (then) been regarded as prohibitively high, but it also was a sincere and fair estimate of the value to the club of the club’s captain, who they perceived to a be a world-class footballer.

On the other hand, Jack did not want any old transfer from Aston Villa, but he wanted to have the real option of joining a club where he could play alongside and against players of a similar standard to himself in European champions league football.

Both parties agreed that this would not and should not happen if Aston Villa itself was playing in the European champions league.

So both parties agreed that in the foreseeable circumstances of interest from a club taking part in the European champions league, what the allocation of risk would then be, and they agreed a practical provision accordingly.

And when interest came from such a club, the parties then know what their interests and positions would be.

Wise Jack.

Wise Aston Villa.

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The story of Harry

Harry also wants to join the same Manchester club.

But it appears Harry and his advisers did not negotiate such a provision in his contract with his London club, who are not taking part in the European champions league.

This was even though it was foreseeable that clubs taking part in the European champions league would want to purchase the England captain and leading goal scorer.

And because there is no such provision to trigger, Harry is reduced to refusing to turn up for training.

It appears he is seeking to use extra-contractual means to end his contract with present club, so as to force through a desired transfer.

This tactic may or may not work, but it is certainly unseemly.

A better approach would have been for him (and his advisers) and the London club to have sat down and discussed the possibility of such a transfer.

The London club, like Aston Villa, could have stipulated onerous conditions to protect their legitimate interests which would have to be met, and Harry could have accepted these conditions in return for the right to trigger the option of a release if those conditions were met.

Of course, it take takes two parties to agree a contract – and it may be that one (or both) of the parties could have refused such a provision outright.

But such a lack of realism has only resulted in the current messy situation, and stubbornness would have achieved little.

It would have been better for both parties if such a realistic option had been provided for.

Instead Harry is at home upset and frustrated.

He appears to have believed there was a ‘gentleman’s agreement’ that would bind the London club, rather than the club being bound by the actual wording of the contract.

Unfortunate Harry.

Unfortunate London club.

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The story of Brexit

With Brexit, the United Kingdom appears to have adopted the Harry Kane approach to contracts – of signing some agreement and then hoping the agreement does not mean what it says.

And so the United Kingdom government is, in effect, also sulking in its plush London home, hoping to force the European Union to move from what was actually agreed.

A more sensible United Kingdom government would – at the time the agreement was negotiated – have dealt with foreseeable risks by allocating the risks as between the parties.

The United Kingdom should have been more like Jack.

But instead it has been like Harry.

Unfortunate United Kingdom government.

Unfortunate us.

**

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The urban legend of the boiled frog, Loki’s branching timelines, and public policy after Brexit

29th July 2021

I am still putting together my detailed piece on the Lugano Convention issue.

This is about how the European Commission has effectively vetoed the United Kingdom’s late (and panicked) application for participation in an arrangement for enforcing judgments in European Union and EFTA member states.

The piece looks at the causes of the current predicament – but also at the consequences.

The ‘so what?’ of any law and policy situation.

And sometimes the ‘so what?’ is not urgent and immediate – it is not eye-catching and headline-prompting and retweet-generating.

But it is serious all along.

And one only notices when it is too late.

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Here the usual analogy is with the poor boiling frogs of urban folklore.

In reality, of course, the frogs, like other animals, would escape if they can when in ever-hotter water.

But a good analogy will never die, even if immersed in boiling water.

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Another analogy – which is currently uppermost in the minds of fantasy and comics geeks (like me) – is that of branching timelines.

In Loki – a wonderful piece of television – the conceit is that there is an omnipotent and omniscient bureaucratic authority that monitors and regulates the timelines of the universe(s).

From time to time (pun intended), a thing happens on a timeline of a universe that means that there are stark deviations to that timeline.

And when those deviations in turn mean that there are significant new branches of reality, the bureaucrats-in-uniform intervene to correct the timeline.

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Brexit is a new branching timeline in the history of the public policy of the United Kingdom.

Our public policy is now diverging from European Union public policy – slightly at first, and only becoming obvious over time.

But over that time, there will be many multiplying differences and discrepancies.

Those gaps will become wider and deeper.

But we are not in Loki.

There may not be some big-bang ‘nexus’ event to alert everyone to the huge gaps that will soon exist.

And we also do not have a time variance authority to step in to return us to the ‘sacred’ timeline from which we have departed.

We do not have the fantasy of some omnipotent and omniscient authority (and still less an omnibenevolent one).

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This lack of a big-bang ‘nexus’ event is something, perhaps, that those campaigning for the United Kingdom to (re)join the European Union will not have as an advantage.

There may be no one spectacular sudden public policy failure to to which they can point.

Just a thousand inconveniences and misadventures, which will be endured and resented, but that will not mobilise and motivate a political movement.

We will be stuck with it.

We will be like a frog, but not one able to jump from boiling water

Instead, we will be a frog trapped in a bottle of our own making

**

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Exclusion from the Lugano convention – is this the legal cost of political toxicity?

28th July 2021

I am currently putting together a piece on the United Kingdom’s exclusion from the Lugano Convention, following Brexit.

The convention provides for the enforcement of judgments in European Union and (all but one) EFTA states – in essence, a judgment of a court in the United Kingdom can be enforced in Italy or Denmark and so on.

Without the convention, enforcement of a domestic judgment is less easy – and far more expensive and time-consuming.

The United Kingdom is seeking to re-join the convention from outside the European Union – but the European Union is effectively vetoing the application.

See this CNN thread here:

One thread in this sequence struck me – and my upcoming piece will be an assessment as to whether such a serious charge is valid:

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If there is validity in this charge then this is indeed a concrete – and consequential – example of the ‘moral hazard’ of which this blog has previously warned.

Such infantile politics must have seemed very clever at the time – with claps and cheers from political and media supporters – but now the effects could be manifesting.

What is less clear is whether this is a serious legal problem as well as a political failure – will it make much difference in legal practice?

Or is its legal significance overblown – event if it is a political embarrassment?

I will post a link to my piece in a day or two when it is published.

**

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Politics v law and policy – a response to Dominic Cummings

26th July 2021

Late last night, Dominic Cummings posted this tweet, with a screengrab of a tweet from me from March 2019:

As a change from my usual daily blogpost, here is my thread in response:

Happy to deal with any comments below.

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If all this were the second Act of a Brexit play, what will happen next?

9th July 2021

Every event is an end of something and the start of something else, and every event is also between the start and end of yet another story.

So assuming what is happening all around us is the middle part of a story, what will happen next?

We have the characters: the knavish and foolish ministers and their political and media supporters.

They have ‘got Brexit done’ in the first Act of our play.

But in our second Act, we have the challenge of, well, reality.

Things are not going to plan (if it can be called a plan).

Things are not as easy as the Brexiters averred.

Brexiters undertook certain legal obligations that they now do not want, and they made promises that they would rather forget – or renege on.

So in this second Act they are confronted with the consequences of their actions and inactions, and their lies.

Will the third Act give them their just resorts?

Or will they pull off an even bigger con?

And will then they get away with it?

Nobody watching Brexit can tell you for certain.

Boris Johnson as a figure in the folklore traditions of tricksters and unfortunate bargains

7th July 2021

Once upon a time my blog had a different name, and that name was Jack of Kent.

This was somewhat odd, as my name is not Jack and I am not from Kent (though I lived there at the time).

But in those days to give your blog a name was then a fashionable thing to do, like it once was to give yourself a calling name when CB radio was popular.

The Jack of Kent after whom the blog was named is a figure in the folklore of Wales and the west midlands counties.

You can read about the chap here.

In essence: he was was a figure who outwitted the devil by having careful regard to the actual wording of texts.

And so it seemed a good name for a legal blog.

Jack of Kent in turn was part of the folk tradition – and certainly not only in England and Wales – of stories about people caught in diabolical deals.

The tradition that had provided stories as diverse as Faust, Dorian Gray and Robert Johnson.

The unfortunate bargain is a staple of folklores and legends – with those entering into the bargains either suffering or, as in the case of Jack of Kent, irking the devil by holding the devil to its exact terms.

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Another staple, of course, is the trickster – a figure who is in many (if not most) of the traditions around the world – Loki, Puck, Anansi, and so on.

Their trickery is, of course, general – and it is not limited to reneging on obligations.

But what is uncommon – at least to my knowledge – is a story when it is the trickster who unwittingly has got himself or herself into a bad bargain.

Frankly: it is usually the trickster – in devil form – who is the one enticing a gullible or ambitious victim into a deal.

So there may be little guidance in folklore for what would happen when it is the trickster themselves seeking to get out of the deal.

But now we have a real-life example, to make good the possible paucity of folklore versions.

We have the unfolding story of the trickster Boris Johnson and the Brexit agreement.

Of course, Johnson did not realise what he was getting into.

Fo him, a deal – ‘oven-ready’, as he boasted – was the casual tool for other trickery.

Tricks he played on the Conservative MPs whose votes he needed and on the Democratic Unionists, whose voted he realised he did not.

And a trick he played to gain an overall majority in December 2019, with his solemn promise to get Brexit done.

Any problems about this deal were then safely in the future.

But those problems are here now – and they cannot be escaped with his usual bluster and evasions.

An international agreement was signed, and mere trickery will not get him out of it.

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What now?

A Loki may be able to change their nature – at least according to current retellings – but it is doubtful that a Boris Johnson can.

The best scenario is that the trickster fails and is seen to fail – and the story of Brexit can become in part an uplifting morality story about the futility of facile politics.

But there are other possibilities: that the trickster responds with ever-greater tricks – more diversions and misdirections, more lies – creating something that lends itself to a tragedy, or an epic – and not to a mere quaint folklore tale.

Brace, brace.

**

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